Cvetanovski v The Queen

[2020] VSCA 272

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0199

ZLATE CVETANOVSKI	Applicant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P, BEACH and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	30 October 2020
DATE OF JUDGMENT:	30 October 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 272
JUDGMENT APPEALED FROM:	DPP v Cvetanovski (Unreported, County Court of Victoria, Judge Montgomery, 13 April 2012)

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CRIMINAL LAW – Appeal – Conviction – Trafficking large commercial quantity of methylamphetamine – Failure by Victoria Police to disclose payments to principal witness – Whether non-disclosure caused substantial miscarriage of justice – Jury unable to assess credibility of witness – Crown concession of miscarriage – Concession properly made – Conviction quashed – Unjust to order re-trial – Verdict of acquittal entered – Criminal Procedure Act 2009 ss 276(1)(c) and 277(1).

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms J Condon QC with Ms K Farrell	Galbally Parker Lawyers
For the Respondent	Mr B Kissane QC with Ms K O’Gorman	Ms A Hogan, Solicitor for Public Prosecutions

MAXWELL P
BEACH JA
WEINBERG JA:

1. On 26 April 2006, the applicant was arrested and interviewed as part of an investigation into high-level drug trafficking.  On 14 April 2008, he was charged with trafficking a large commercial quantity of methylamphetamine.  The information which led to the arrest had been provided to Victoria Police by a Mr Cooper.[1]

   [1]A pseudonym.

1. In July 2011, the applicant was convicted by jury verdict of the trafficking charge.  Mr Cooper was the principal prosecution witness at the applicant’s trial.  On 13 April 2012, the applicant was sentenced to 10 years’ imprisonment on the trafficking charge.[2]

   [2]On the same day he was sentenced on unrelated deception charges.  With cumulation, the total effective sentence was 11 years’ imprisonment.  A non-parole period of 9 years’ imprisonment was fixed.

1. At the time of the applicant’s arrest in April 2006, Ms Nicola Gobbo (then a member of the Victorian Bar) acted as his legal adviser.  At that time, unbeknown to the applicant, Ms Gobbo was a registered police informer;  was acting as Mr Cooper’s legal adviser;  and had persuaded Mr Cooper to co-operate with police and incriminate the applicant.

1. Throughout 2006, Ms Gobbo had an extremely close personal relationship with Mr Cooper.  She provided him with moral support, conducted welfare checks and made requests to Victoria Police to look after him.

1. In the course of 2006, Ms Gobbo and Victoria Police provided various forms of financial assistance to Mr Cooper whilst he was in custody.  This included regular payments into his prison canteen fund, as well as one-off payments to him.

1. The applicant contends that his trafficking conviction should be set aside on the ground of non-disclosure.  He says that there has been a substantial miscarriage of justice ‘because of the failure to disclose, and concealment of the fact,’ that Ms Gobbo was a police informer.  As a result of the non-disclosure, the applicant says, he:

(a)   was unable to challenge the admissibility of key evidence in his trial;

(b)  was unable to properly test Mr Cooper’s evidence against him;  and

(c)   was unaware that Ms Gobbo, who was acting as his legal representative, had breached her professional duty to him.

1. The Crown concedes that the failure of Victoria Police to disclose to the applicant the payments made to Mr Cooper by Victoria Police and Ms Gobbo resulted in a substantial miscarriage of justice.  Mr Cooper’s evidence was central to the prosecution’s case against the applicant, and the non-disclosure of the payments resulted in the jury being unable to make a proper assessment of Mr Cooper’s credibility.

1. As a result of the non-disclosure, the Crown accepts, the applicant ‘could not properly interrogate [Cooper], relevant police members or Gobbo about the nature, circumstances and extent of the payments’.  It is further conceded that the jury were not able to assess ‘the ways that Gobbo’s involvement in Victoria Police’s making of the payments’ affected Cooper’s credibility or the veracity of the evidence more generally.  Non-disclosure of Gobbo’s involvement ‘resulted in the applicant being unable to undertake further investigations and conduct further cross-examination’.

Disposing of the appeal

1. In our view, the Crown’s concession is properly made. The principles governing disclosure are fundamental to the integrity of criminal trials and to the maintenance of public confidence in the administration of justice.  The Director rightly draws attention to what this Court said recently in Roberts v The Queen, as follows:

It is fundamental that there must be full disclosure in criminal trials. It is a ‘golden rule’. The duty is to disclose all relevant material of help to an accused. It is owed to the court, not the accused. It is ongoing. It includes, where appropriate, an obligation to make enquiries. It is imposed upon the Crown in its broadest sense. And a failure in its discharge can result in a miscarriage of justice.’[3]

[3][2020] VSCA 58, [56] (Osborn and T Forrest JJA, Taylor AJA) (citations omitted).

1. In view of the Crown’s concession, it has not been necessary for the Court to undertake any factual investigation of its own.   On the facts as conceded, there was a substantial miscarriage of justice.[4]  The appeal must therefore be allowed and the conviction quashed. 

   [4]See Wilde v The Queen (1988) 164 CLR 365, 373 (Brennan, Dawson and Toohey JJ); OKS v Western Australia (2019) 265 CLR 268;[2019] HCA 10 [36] (Edelman J).

1. The question which then arises is whether there should be an order for a new trial or whether, instead, a judgment of acquittal should be entered.  The Director draws attention to the decision of the High Court in Director of Public Prosecutions (Nauru) v Fowler,[5] which requires the Court in deciding whether or not to order a new trial to take into account

any circumstances that might render it unjust to the accused to make him stand trial again, remembering however that the public interest in the proper administration of justice must be considered as well as the interests of the individual accused.[6]

[5](1984) 154 CLR 627; [1984] HCA 48 (Gibbs CJ, Murphy, Wilson, Deane, Dawson JJ).

[6]Ibid 630.

1. The Crown concedes that in the circumstances it would be unjust to order a retrial.  The basis of the concession is that there has been a ‘significant lapse of time’ since the offending took place and, moreover, the applicant has ‘served a significant portion of his non-parole period’.  In fact, as appears from the reasons given for granting the applicant bail in May of this year, he has served almost the entirety of the non-parole period.[7]

   [7]Cvetanovski v The Queen [2020] VSCA 126, [4].

1. In our view, that concession is also properly made.  We will order that the appeal be allowed, the conviction for trafficking a large commercial quantity of methylamphetamine set aside and in its place a judgment of acquittal be entered.